of all priority over debts of a lower degree. As to judgments against administrators, see In re Rigby (3). In Evans v. Williams (4) it was held that section 4. did not deprive a judgment creditor who had registered, but had not re-registered within five years before the debtor's death, of his priority over creditors of a lower degree. But that was on the ground that the statute must not be construed to take away a right existing at the time the act was passed. Here the plaintiff had no existing rights to be taken away.

[BLACKBURN, J.-The intention of the legislature seems quite plain-to patch up a hole left open by the 18 & 19 Vict. c. 15. s. 4. The only question is, have they mended it?]

O'Malley and Lumley Smith, in support of the rule. The plaintiff contends that the hole was not effectually stopped. The judgment was obtained in 1854, and then, without registration, affected purchasers, and had priority over simple contract debts -2 Lush's Practice, 3rd edit. by Dixon, p. 574.

[BLACKBURN, J.-It had not actually priority; but if the intestate had then died, it would have had priority.]

Then, in 1855, came the 18 & 19 Vict. c. 15. s. 4, which said: Register, and if you do not register, your judgment shall not affect purchasers or mortgagees. That statute did not touch the force of the judgment as against executors, and we therefore had a vested right of preference to simple contract creditors. Then comes the 23 & 24 Vict. c. 38. s. 3, and says, no judgment which is not registered so as to bind purchasers shall bind executors. It is impossible that that statute can have been intended to apply to such a judgment as this; for no statute is to be construed so as to destroy vested rights, unless it is expressly so enacted.

[BLACKBURN, J.—Why should it not be construed as retrospective if the intention be clear? If the intestate had died before the passing of 23 & 24 Vict. c. 38, then I think your argument might have been good, but that act gave the plaintiff full warning. You cannot deny that there never was a case in which the intention of the legislature was so plain.]

(3) 33 Law J. Rep. (N.S.) Chanc. 149.
(4) 34 Law J. Rep. (N.S.) Chanc. 661.

The judgment was good as a judgment "entered and signed" under the 4 & 5 W. & M. c. 20, and since that statute was made perpetual by the 7 & 8 Will. 3. c. 36. s. 3, it comes within the exception of the 23 & 24 Vict. c. 38. s. 3, as a judgment entered and docketed under an act passed subsequently to the 4 & 5 W. & M. c. 20. If the 23 & 24 Vict. c. 38. s. 3. has the construction contended for by the defendants it would equally apply if the intestate had died one day after that statute had come into force, and that would be a monstrous injustice on a judgment creditor.

BLACKBURN, J.-I think the matter is perfectly clear, and that the intention of the legislature is so expressed as to leave no real doubt about it. The state of the law was this owing to mistakes committed in earlier acts, a judgment bound lands in the hands of purchasers who bought without notice after the judgment had been obtained, and this even when the judgment was not registered; and if an executor exhausted the estate in paying other debts, he committed a devastavit, though he was not aware of the existence of the judgment. This was so in 1854, and then it was thought hard on a purchaser, without notice, that he should be liable to the extent of half his lands to a judgment though not registered. In order to prevent this hardship, the 18 & 19 Vict. c. 15. enacted, that after the passing of that act, unless the judgment was registered previously to the purchase, the purchaser should not be liable. If the judgment was registered. then it was the purchaser's own fault if he did not discover it. But this statute left untouched the case of the executor, who, having looked for a judgment in the registry and not finding it might, nevertheless, after paying simple contract debts, be liable to the judgment. This was thought very hard, and in 1860, the 23 & 24 Vict. c. 38. s. 3, after reciting former acts, and saying, "whereas the said several later acts do not expressly enact that judgments not docketed as thereby required shall not have any preference against heirs, executors, or administrators in their administration of their ancestors', testators', or intestates' estates, in consequence whereof such heirs,

executors, or administrators have been held to have lost the protection which they enjoyed under the said first-recited act, and it is expedient that the same should be restored" that is, in effect, that executors should have this protection in paying simple contract debts-proceeds, "Be it therefore enacted, that no judgment which has not already been, or which shall not hereafter be entered or docketed under the several acts now in force, and which passed subsequently to the said act of 4 & 5 W. & M. so as to bind lands, tenements, or hereditaments, as against purchasers, mortgagees, or creditors, shall have any preference against heirs, executors, or administrators, in their administration of their ancestors', testators', or intestates' estates."

This judgment was good for one year after it was obtained, and would for that time have bound lands in the hands of a purchaser or mortgagee, but it would not have done so when the 23 & 24 Vict. c. 38. was passed. Once it had that effect as against purchasers, but when that act passed it had not, because it was not registered, and the legislature expresses its intention clearly that this provision should apply to judgments already existing. The object was plain, namely, that a judgment which is not registered so as to bind subsequent purchasers, shall not bind executors or administrators. This construction does not deprive any one of any vested right. If the intestate had died in 1860, before the passing of that act, then it might have taken away a vested right; but it was not

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The effect of the act, then, is, that until a judgment is so registered as required, an executor need not regard it as having any priority over simple contract debts.

MELLOR, J.-I am of the same opinion. Mr. Lumley Smith's very ingenious argument did not produce any impression on my mind that the statute can be made to bear any other construction than that which my Brother Blackburn has given to it. SHEE, J. concurred.

Rule discharged.

Attornies-Ravenscroft & Hills, agents for C. H. Cooper, Cambridge, for plaintiff; Coverdale & Co., agents for W. H. Goy, Barton-upon-Humber, for defendants.

Poor-Rate-Highway Acts, 1835, 1862, (5 & 6 Will. 4. c. 50. ss. 27, 33; 25 & 26 Vict. c. 61. 88. 3, 6, 7, 21, 42.)-Exemption from Liability to Highway-Rate-District Board-Precept to Overseers of Parish.

The occupiers of certain lands in a hamlet which maintained its own highways, and was locally situated within and was assessed to the poor-rate for the township of W, which township separately maintained its own poor, were exempt from liability to contribute to the repairs of the highways in the hamlet before the passing of the Highway Act, 1835. By section 27. of that act all property liable to be assessed to the relief of the poor was made ratable to the repair of highways; but by section 33. all legal exemptions were preserved. After the passing of the Highway Act, 1862, the hamlet was, by an order of Quarter Sessions, combined with the township and other places into a highway district under that act. The highway board for such district issued a precept to the overseers of the township to contribute out of the poor-rates a certain sum for the repair of the highways of the township, now including the hamlet. By section 42. of the Highway Act, 1862, the former act was to be construed as one with that act:-Held, that the occupiers of the lands in question were exempt from contributing to a poorrate levied by the overseers of the township for the purposes of the relief of the poor, and to meet the precept of the district board as to so much as they assessed in respect of the repairs of the highways; for that the substitution of the poor-rate for the highwayrate by the Highway Act, 1862, as the fund out of which the supplies for maintaining the roads have to come, did not take away the former exemption which had been preserved by the Highway Act, 1835.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 113.]

1866. Jan. 30.

COBB V. THE MID-WALES RAIL-
WAY COMPANY.

Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), ss. 34, 51, 52, 68, 93, 94.-Costs of Inquiry whether Value of Land intersected by Railway Company's Works is greater than Expense of making a Communication with it.

A railway company is not liable to the costs of an inquiry (under section 94. of the Lands Clauses Consolidation Act) as to whether land intersected by the works of the railway is of less value than the expense of making a communication between it; as the sections of the statute which award costs apply only to cases where the obligation of the company to take land is not in question.

This was a motion for a rule for a direction to the Master to tax the plaintiff his costs of an inquiry, under section 94. of the Lands Clauses Consolidation Act, as to the cost of making a communication between the plaintiff's land, and as to the value of the land.

The facts were as follows:

J. R. Cobb, the plaintiff, was the owner of two fields, the first consisting of something more and the second of rather less than two acres. One field lay on the north side and the other on the south side of the Hay tramroad. Access to each field was obtained by the tramroad only (over which the owners and occupiers for the time being of each field had a right of way to the public road). The access was through gates opening on the road.

The Mid-Wales Railway Company, by their special acts, acquired the tramroad and strips of each of these two fields adjoining it. On a portion of the land so acquired, the company constructed their line of railway, in such a manner as to destroy all access from one to the other of the two fields, or from either field to a public road. Besides this the wire fences inclosing the company's lands had no gates, so that the occupier of the fields had no means of getting into or out of them with cattle. The plaintiff took proceedings, under sections 70. and 71. of the Railways Clauses Consolidation Act, and obtained an order from two Justices directing the company to make good the interruption to

the use of one of the fields caused by the railway, and to make a convenient passage or way from that field to the other, carried by an arch or tunnel of at least 9 feet in breadth and 9 feet in height. The company thereupon, on the 11th of July, 1865, gave the plaintiff notice that if he required the company to make such arch, tunnel or communication, the company would require him to sell to them one of the pieces of land (numbered 46), and that if after ten days from the notice he failed to agree with the company as to the sale of this piece of land, and any dispute should arise as to its value, or what would be the expense of making the arch, tunnel or communication, or failed to satisfy the company that he had other lands adjoining this piece of land, the company, in pursuance of the statutes in such case made and provided, would proceed to have the value of the piece of land, and what would be the expense of making the arch, tunnel or communication, duly ascertained.

On the 25th of July the plaintiff gave the company notice (without prejudice to his right at any future time to contend that section 94. of the Lands Clauses Act had no application to the case, and that the company were bound to make the arch, &c.) that they had no such right as claimed under the notice; that he required the company to make the arch, tunnel or communication; that he was not willing to sell the piece of land No. 46; that he did not admit that this land was of less value than the expense of making the communication; and that he required the company to issue their warrant to the sheriff to summon a jury for ascertaining and determining the question; and that if the company did not proceed with all due despatch, he would himself (under section 70. of the Railways Clauses Consolidation Act) begin to execute the works directed by the order of Justices.

On the 14th of August the warrant of the company was delivered to the sheriff, requesting him to summon a jury to assess and give a verdict for the sum of money which they should consider the value of the piece of land No. 46, and also to assess and give a verdict for the sum of money which would be the cost of making the arch, &c.

On the 5th of September the inquiry was commenced before a special jury, who found that the piece of land was of less value than the expense of making a communication with it. They assessed the value of the land at 2687. 1s. 6d., and the cost of making the arch, &c. at 3007.

The plaintiff thereupon applied to a Master of the Court, under section 52. of the Lands Clauses Act, to tax him the costs of the inquiry; and it was agreed that the Master should refuse, in order that the opinion of the Court might be at once taken.

Tindal Atkinson, Serj. (H. Lloyd with him) now moved for a rule in the terms above stated. The plaintiff is entitled to his costs under the express words of section 94 (1), which provides that the value of the land and the cost of the communication between it shall be ascertained as in cases of disputed compensation. The costs in ordinary compensation cases are regulated by sections 34. and 51, which provide that the costs are to fall on the company, unless they have previously offered a sum less than the amount recovered. Here no offer has been made by the company, and they are clearly liable.

Karslake and Littler shewed cause in the first instance. The plaintiff is not entitled to his costs. All provisions as to costs in the Lands Clauses Act stop with section 68, and there is nothing afterwards to give

(1) By the Lands Clauses Act (8 & 9 Vict. c. 18) section 93, with respect to small portions of intersected land, "If any lands not being situate in a town or built upon shall be so cut through and divided by the works as to leave, either on both sides or on one side thereof, a less quantity of land than half a statute acre, and if the owner of such small parcel of land require the promoters of the undertaking to purchase the same along with the other land required for the purposes of the special act, the promoters of the undertaking shall purchase the same accordingly, unless the owner thereof have other land adjoining to that so left into which the same can be thrown, so as to be conveniently occupied therewith; and if such owner have any other land so adjoining, the promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner."

By section 94, "If any such land shall be so cut through and divided as to leave on either side of the works a piece of land of less extent than half a statute acre, or of less value than the expense

a right to them. These earlier sections relate to disputed compensation, where the company is empowered to take the land.

[MELLOR, J.-This is only an incidental inquiry as to the value of the land. Could the company have protected themselves by making an offer for the purchase of it?]

They could not. The landowner raises the question by saying that the communication will cost less than the value of the land. He makes no claim for any sum as the value of the land. This is the question which the jury have to try, and it is in no respect like an ordinary case where nothing but the amount of compensation is in dispute. The value of the land may not be questioned.

[BLACKBURN, J. referred to Corrigal v. the London and Blackwall Railway Company (2), where it was held (before the Lands Clauses Act) that the plaintiff was not entitled to costs, as his case did not fall within those specified in the special act, in which the company were made liable to the costs.]

The legislature could never have contemplated this case. Section 38. applies only to cases where the company are about to take land-Railstone v. the York, Newcastle and Berwick Railway Company (3).

Tindal Atkinson, Serj., in reply.-The landowner may be right in the main issue which has arisen between him and the com

of making a bridge, culvert or such other communication between the land so divided as the promoters of the undertaking are, under the provisions of this or the special act, or any act incorporated therewith, compellable to make, and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the undertaking to make such communication, then the promoters of the undertaking may require such owner to sell to them such piece of land, and any dispute as to the value of such piece of land, or as to what would be the expense of making such communication, shall be ascertained as herein provided for cases of disputed compensation; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the jury or the arbitrators, as the case may be, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would be the expense of making such communication."

(2) 5 Man. & G. 249; s. c. 12 Law J. Rep. (N.8.) C.P. 209.

(3) 15 Q.B. Rep. 404; s. c. 19 Law J. Rep. (N.S.) Q B. 464.

pany. The value of the land may be less than the cost of the communication, and yet the construction contended for would deprive him of his costs. An offer by the company has always been considered an important element in questions relating to costs-Richardson v. the South-Eastern Railway Company (4).

[MELLOR, J.-It may be that the words "shall be ascertained as herein provided for cases of disputed compensation" may mean so far as the value of the land is concerned."]

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The plaintiff was compelled to go on with the inquiry, as no offer was made to him.

COCKBURN, C.J.-I have come to the conclusion (but not without considerable hesitation) that this rule must be discharged. The 94th section of the Lands Clauses Act does undoubtedly provide that the inquiry to be held under that section, as to the value of a piece of land intersected by the company's works, shall be conducted and the result ascertained as provided by the statute for cases of disputed compensation. Now, in cases of disputed compensation, the owner of the land is entitled to his costs of the inquisition, if no offer has been previously made by the company for the purchase of the land. Here no offer was made by the company; and it would seem to follow, according to the practice in other cases, that the claimant must have his costs. But, when we come to look more closely at the language of the 94th section, it seems to me that the only conclusion at which it is possible to arrive is, that there has been casus omissus; and that when the framer of the act inserted the words, "shall be ascertained as herein provided for cases of disputed compensation," the provisions of the act with reference to such cases were not present to his mind. Now, the inquiry under the 94th section has two main branches-First, whether the expenses of the communication which the owner of the land insists upon having made are greater than the value of the land. If this is proved to be the case, the company have the option of taking the land. The second

(4) 11 Com. B. Rep. 154; s. c. 20 Law J. Rep. (N.8.) C.P. 236.

branch of the inquiry is a question of compensation: what is the value of the land, assuming that the company are bound to take it? If the present case could be considered to belong to the latter branch of inquiry, it might be regarded as a question of compensation. But here, unfortunately, we are dealing with what belongs to the first branch of the inquiry, and in such circumstances the legislature seems to have made no provision for costs. If the value of the land had been greater than the expense of the desired communication, a question of compensation might have arisen. But the jury have found that the value of the land is less than the cost of the communication, so that there never has been any question of compensation, and there. is therefore no right to costs. There can be no doubt that it would have been much better if the 94th section had stated in express terms whether or not the landowner was to be entitled to costs; but in the absence of anything to throw light upon the words of the section, we must take them by themselves; and all we can say is, that the regulations of section 51, concerning costs where a previous offer has or has not been made by the company, are not applicable here, and that it is not for us to supply any deficiency in the statute.

BLACKBURN, J.-I have come to the same conclusion,-like my Lord, with considerable doubt and hesitation. It seems to me that this is casus omissus, and that the legislature has not provided for the costs. Costs, I need hardly say, are not matter of right unless the intention of the legislature to give them has been made plain. Now the 94th section provides[His Lordship read the section]. - The value of the land intersected and the expense of making a communication with it are to be ascertained as provided in the statute for cases of disputed compensation. Now, where the company have only to consider the price to be paid for the land, they may readily make an offer; but where the landowner does not assent to the company's proposals, no offer can be made so as to supersede the necessity of an inquiry. The company may offer ten times the value of the land; but they have no right to take possession of it, so as to dispense with the inquiry. Now, what says the 94th section?